Chan (Migration)

The Administrative Appeals Tribunal considered a case involving an applicant whose visa was subject to cancellation. The dispute arose from allegations that the applicant had failed to comply with section 101(b) of the Migration Act 1958 (Cth) by providing incorrect information in a previous visa application. The Tribunal was tasked with determining whether the applicant had indeed failed to comply with the relevant legislative provisions and, if so, whether the cancellation of their current visa was warranted.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect answers in their Working Holiday (Extension) (subclass 417) visa application, specifically concerning their undertaking of specified work in regional Australia. This non-compliance, if established, could lead to the cancellation of their current Student (Temporary) (class TU) Student (subclass 500) visa under section 109 of the Act, as permitted by section 107A. The Tribunal had to assess the evidence presented, including the applicant's visa application details and information received from the alleged employer, to determine the veracity of the applicant's statements.

The Tribunal found that the applicant had indeed failed to comply with section 101(b) of the Migration Act, as the employer had confirmed the applicant had never worked for them, contradicting the applicant's statements in their visa application. However, the Tribunal also considered section 109(1) of the Act, which allows the Minister to cancel a visa after deciding there was non-compliance, but also requires consideration of any response to the notice and "any prescribed circumstances." Having regard to all relevant circumstances, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel it.